Act for equals and more equals
What is in the draft zoning law? Several very material changes and several alleged facilities. It is a pity therefore, that some of the long-awaited procedural simplifications are exclusively for public projects
The new draft of the zoning law ("draft law") was
submitted to Parliament by the Government in June 2002, and forms part of the
"Enterprise, Development and Work" package of laws. The legislative
process, although delayed, is now well advanced, and the law is likely to be
voted on soon. Like the current law dated 7 July 1994, the draft law regulates
both the urban planning process and the development of individual projects. The
latter forms the main focus of this article.
The draft law introduces two different regimes of planning permits to replace
the current unique regime. There will be separate types of planning permits for:
- private investments (a decision on private investments will be referred to as
"WZ"),
- public investments at a local (communal) and supra-local level (a decision on
public investments will be referred to as "LICP").
The law will probably enter into force in spring 2003. "Old" master
plans (i.e. those adopted before 1 January 1995) will remain in force until 31
December 2003, unless they have already expired. This may again turn out to be
too short a period for gminas to vote through new master plans. "New"
master plans (those adopted after 1 January 1995) will remain in force without
any time limits.
Public vs. private
The draft law favours public investments over private ones. Public projects,
even large scale ones such as national roads, can be developed without a master
plan. This will not be possible in the case of retail schemes of more than 2,000
sqm. In terms of procedure, obtaining and maintaining a LICP is much easier than
for a WZ. The involvement of third parties and the possibility of appealing
against a decision in public investment proceedings is more limited compared to
private projects.
It is regrettable that some long-awaited simplifications only apply to public
schemes. One might also wonder why such simplifications only concern the
planning permit procedure, and not the even more complicated procedure of
applying for a building permit.
New planning permit procedure
There will be some quite important changes to the planning permit procedure when
the draft law comes into force.
WZs will be issued exclusively for sites not covered by master plans or covered
by old ones. However, the lack of a master plan may lead to the WZ procedure
being suspended until a new plan has been voted on, but for not more than 12
months. It is an unfortunate solution that may delay many new projects,
especially after the expiry of old master plans on 31 December 2003. The current
law is more reasonable in this respect - it only allows the WZ procedure to be
suspended if the master plan is already being elaborated. Both the current and
the new law contain a serious defect: they do not specify objective reasons for
suspending proceedings. This means that the authority may issue a WZ for one
developer and suspend another's procedure.
Apparent facilities
Planning permits for new projects will not be issued on sites covered by new
master plans - the developers will apply directly for a building permit. One
might consider this a nice simplification, but this will not always be the case.
A much better idea would be to make obtaining a WZ on such sites optional, which
would enable, and not force, the developer to leapfrog the planning permit
procedure. The WZ phase would probably not be skipped in large-scale investments
where the costs of designs and other studies would not be incurred at risk, and
also because of the lenders' requirements. In smaller schemes, however, the
planning permit phase could be omitted without much harm. It is difficult to
understand the reasons behind the inflexibility of the draft law.
Paradoxically, a WZ will be necessary for reconstruction or a change in use of
the building, even on sites covered by new master plans. In other words, a WZ
will not be necessary to develop a new building, but will be required for the
reconstruction of an existing one. For the sake of consistency, it would be much
better to continue with the current regime of "change in use" permits
granted under the construction law.
The permitting authority will have to check the physical and legal status of the
site. This seems pointless as the basic rule says that a planning permit must be
issued if the projected investment complies with the master plan, independently
of any property issues.
A new obstacle in obtaining a WZ will be met if certain infrastructural elements
(electricity, water, gas etc.) are not available on the site. In such a case,
the applicant must undertake to implement the necessary connections in an
agreement with the relevant body, prior to filing for a WZ, which is at a very
early stage. Needless to say, the negotiations will not only be a good
opportunity for the body to obtain other "voluntary" undertakings from
the developer, but will inevitably be time-consuming as well. Moreover, direct
access from the site to a public road must be secured prior to filing for a WZ.
In some cases, planning permits must obtain prior approval from certain
specialised bodies (monuments surveyor, road authority etc.). The weakness of
both the current and the new regime is the lack of the "silence means
consent" rule. There does not seem to be any other way of enforcing timely
co-operation from those authorities. A significant improvement in the new regime
is that planning permits will now be transferable, just as building permits
already are.
CONCLUSION
The draft law is supposed to facilitate the planning and development process,
which is vital for the recovery of the property and construction market.
Unfortunately, I cannot see this aim being achieved in all intended respects. In
some respects the draft law could go further, in some others it actually went
too far. z
Piotr Szafarz
Lawyer at CMS Cameron McKenna
